Part 1: LGBTQ Youth in the Juvenile Justice System

An Increase in Identified LGBTQ Youth
Adolescence is an important time of social and emotional development. Children struggling with traumatic experiences in detention facilities can develop serious problems: social isolation, behavioral difficulties, and overall issues that can have a negative impact on their current quality of life and future functioning. Ashley Eckes & Heidi Liss Radunovich, Trauma and Adolescents 2 (2007). Therefore, more attention needs to be focused on education and awareness for defense attorneys who are representing clients who may not be open about their LGBTQ orientation.

Some may believe that the LGBTQ youth population does not exist, refusing to accept that children are sexually active or sexually identify themselves at a young age. However, this is not the case. Even though estimates of the gay, lesbian, and bisexual population vary in the United States, many researchers believe that between 5 and 6 percent of youth fit into one of these categories. Human Rights Watch, "Young and Queer in America," in Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools (2001) (last visited Dec. 13, 2010). For example, the estimated number of children currently enrolled in school is 76 million, U.S. Census Bureau, Back to School: 2010–2011, which means that at least 3.8 million school-age children in the United States are dealing with sexual orientation issues.

According to researchers, on average, the age of same-sex attraction awareness is 10, and the average age at which youth disclose their sexual orientation is 14. A. Daugnelli, A. Grossman & M. Starks, "Parents' Awareness of Lesbian and Bisexual Youth's Sexual Orientation," J. Marriage & Family, May 2005, at 478. A 1996 study of youth found that generally girls were aware of their attraction to other girls at age 10 and had their first same-sex experiences at age 15. Human Rights Watch, supra. The study also established that boys had their first awareness of same-sex attraction at age 9 and their first same-sex experience at age 13. In addition, in 1998, a group of adults were surveyed about their first realization of their attractions to the same sex. The survey found that the first awareness of an attraction to the same sex occurred at an average age of 13 for men and between 14 and 16 for women. The average age for the first same-sex experience was 15 for men and 20 for women. These studies are evidence that today's youth are recognizing their same-sex attractions at younger ages.

Unfortunately though, there are no clear data regarding the prevalence of people who identify themselves as transgender. See Human Rights Watch, supra. ("Transgender" is an umbrella term that is used to describe the identities and experiences of people whose gender identity does not conform to society's stereotypical definition of "male" or "female" in some way. This broad definition makes it difficult to compile statistics about this community.) However, some think that there may be about 1.1 million transgender youth and adults in the United States. One Million Transgender Youth and Young Adults in the United States? (Feb. 13, 2010). This statistic is hypothetical and extrapolated from recent surveys around the country; therefore, it cannot be deemed accurate until transgender status is captured in the census. But there is no argument as to whether these individuals are particularly vulnerable to harassment in and out of the criminal justice system.

Disproportionate Representation
There is a cyclical relationship between the LGBTQ identity and the juvenile justice system: Many youth become caught in the revolving door of the juvenile justice system because they identify as LGBTQ. These youths' first encounters with the criminal justice system usually occur either on the streets or in school. Between 20 percent and 40 percent of homeless youth and runaways in the United States identify themselves as LGBTQ. Rudy Estrada & Jody Marksamer, "Lesbian, Gay, Bisexual, and Transgender Young People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for All Youth Through Litigation, Advocacy and Education," 79 Child Welfare 2, 4 (2006). This is because many LGBTQ youth leave home to escape hardship or abuse due to their lifestyle. Many others are kicked out because their families do not approve of their homosexuality or sexual identity. As a result, youth become victims of the street and engage in nonviolent "survival crimes" to obtain cash flow and food. Jody Marksamer & Shannan Wilber, The Model Standards Project 3 (2002). Typically, these "survival crimes" consiste of prostitution, petty theft, or shoplifting. Estrada & Marksamer, supra, at 5 n.28.

In addition, LGBTQ youth find themselves in juvenile detention facilities as a result of the horrifying discrimination, abuse, and harassment in their schools. This adversity forces LGBTQ youth to either fight to defend themselves or skip school to escape peer persecution. Marksamer & Wilber, supra. Either way, these youths end up in the courtroom on criminal charges because they have engaged in self-defense or because they are chronic truants.

Due to harassment at school, LGBTQ youth sometimes find themselves in the role of the offender in the courtroom and behind bars. One youth, Beth G., who was interviewed for the Human Rights Watch study, spoke of months of repeated verbal threats and abuse in school: "I was so angry that I'd been tolerating this behavior, that I was trying to accept it . . . I realized, it's affecting me at school; it's pushing me out of classes." Human Rights Watch, supra, ch. VI., "Coping with Harassment and Violence." It is evident that this is not an isolated problem because peer abuse can affect many aspects of a child's life. In turn, the adversity facing LGBTQ youth can drive them into the menacing grip of the juvenile justice system and, when behind bars, into further abuse from their peers and detention employees.

Examples of Abuse
LGBTQ youth in the juvenile justice system may face discrimination and harassment that many other detained youth do not encounter, including verbal, physical, and mental abuse. Much of this inequity occurs in tandem with other issues that youth have to grapple with when incarcerated. These issues are magnified, however, for less visible LGBTQ youth.

In 2006, a groundbreaking legal case brought to light specific issues that many LGBTQ youth face in detention. R.G. v. Koller, 415 F. Supp. 2d. 1129 (D. Haw. 2006),focused on three individual plaintiffs: a 17-year-old male-to-female transgender girl, an 18-year-old lesbian, and an 18-year-old male perceived to be gay. These three individuals sued the Hawaii Youth Correctional Facility (HYCF), the state's juvenile correctional facility, because of the abuse and harassment they received there due to their sexual orientation and gender identity. R.G. was a victory for those advocating for the rights of LGBTQ youth in the juvenile justice system. The judge issued a preliminary injunction requiring HYCF to cease the harassment of the LGBTQ wards. HYCF eventually settled the case and agreed to reform its system and institute a new anti-harassment policy to rectify the inherent discrimination.

R.G. highlighted many of the issues that LGBTQ incarcerated youth face throughout the country. There was continual verbal abuse by the staff at HYCF, including the Youth Correctional Officers. Routinely, staff would use the term "butchie" to refer to female wards who identified themselves as gay, expressed romantic feelings for other girls, or failed to conform to sex stereotypes. On other occasions, staff members expressed their own personal feelings that being gay was "wrong" and "disgusting," and they required the other young wards to develop rules and punishments for LGBTQ wards.

The other two young plaintiffs faced similar verbal abuses and threats. On a regular basis, other wards would call the gay male derogatory names. The young male-to-female transgender girl was called similar names in the presence of staff. Furthermore, the staff would foster this abuse by referring to her as "cupcake" and "fruitcake." This young girl was not allowed to play with her hair "like the girls," and the staff often threatened to "cut off her hair and send her 'over to the boys'' side."

These comments, especially the latter, are terrifying to transgender wards in the juvenile justice system. To be sent back to the boys' side would mean that the transgender ward would be put in an area where she did not feel comfortable and the other male wards would most likely notice her uneasiness. This transgender ward at HYCF identified herself as female, and assimilating the genders led to more verbal abuse and physical attacks. At one point, this young woman was actually transferred to the boys' unit where she was subjected to escalating harassment and physical abuse from other wards.

Isolation May Exacerbate the Harm
Juvenile detention employees, like the ones in HYCF, have witnessed this verbal and physical abuse and felt that the only solution to protect these individuals was isolation. The use of isolation and solitary confinement for "protection" is sometimes viewed as reasonable and nonpunitive by detention staff, but, in reality, it has the opposite effect. With isolation, the victimized LGBTQ youth ironically is turned into the offender. Isolating an individual acts more as punishment than protection, and these practices have the potential to lead to physical and mental deterioration. Continual harassment and solitary confinement can wear down one's self-confidence and ideation of self-worth, leading to a downward spiral of mental distress.

In the R.G. litigation, Robert Bidwell, M.D., an associate professor of pediatrics at the University of Hawaii John A. Burns School of Medicine, whose specialty is adolescent medicine, conducted interviews of the plaintiffs. In his declaration, he noted that it is well known that prolonged periods of isolation may have adverse psychological effects: "With respect to LGBT[Q] youth, isolation may be perceived as punishment for being LGBT[Q], which evokes feelings of rejection and depression and may manifest itself through a variety of physical symptoms ranging from headaches to self-mutilation." Declaration of Robert J. Bidwell, M.D., at 11, R.G. v. Koller, 415 F. Supp. 2d 1129 (2006) (Civ. No. 05-566 JMS/LEK) (Sept. 2005). Dr. Bidwell also commented on the extreme conditions of solitary confinement that the staff forced LGBTQ youth to endure for their "protection" in HYCF. This included long-term segregation for 23 hours a day with nothing other than a pillow and blanket in their holding cell. R.G., 415 F. Supp. 2d. at 1148. The young wards would be allowed to leave their cells for only one hour a day to shower and engage in recreation, and they were not permitted letters, writing instruments, radio, television, or any interaction with other wards. This "protection" at HYCF seemed to cross the line into a solely punitive nature for simply identifying as LGBTQ.

Part 2 of this article will appear in the next issue of LGBT Litigator.

Keywords: litigation, LGBT, juvenile justice system, awareness

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